Property rights and the broadcast flag

Joe Brockmeier recently castigated members of Congress for attempting to sneak the broadcast flag into law by attaching it to an appropriations bill. Along the way, Joe agreed with Rick Boucher, representative for Virginia's Ninth Congressional district, that if the content industry wants the broadcast flag, they should agree to legal extensions into the digital age of "fair use" principles.

Joe Brockmeier recently castigated members of Congress for attempting to sneak the broadcast flag into law by attaching it to an appropriations bill. Along the way, Joe agreed with Rick Boucher, representative for Virginia's Ninth Congressional district, that if the content industry wants the broadcast flag, they should agree to legal extensions into the digital age of "fair use" principles. Brockmeier closed by making a populist call to arms, stating: (i)t may be their content, but they're our airwaves.

I'm not convinced of the need for a "broadcast flag," either. I have difficulties with compelling hardware vendors to respect an arbitrary set of bits that control whether unencrypted media can be saved. If the public decided the benefits of such a flag (free broadcast of digital content) justified a mandate, then that would be one thing (though I'd still be reluctant). The content industry, however, hasn't sufficiently made that case to the general public or Congress. Given that failure, it's wrong to attempt to sneak it into law.

On the other hand, I don't think media providers should be compelled to sacrifice their right to restrict the way the media they produce is used by end-users in pursuit of fuzzy principles of "fair use."

I emphatically reject the notion that because airwaves are "publicly owned" we have the right to force companies into different licensing terms for their products. That bastion of central planning (government control of the airwaves), one that guarantees that large swathes of the spectrum get used unproductively, is poor justification for playing "Troll under the bridge" with content companies. Forcing companies to offer products under particular terms is a role for consumers making buying decisions, not government directives that force content OWNERS to offer their creations under terms they don't wish to offer them.

If I lent my non-existent lawnmower to my neighbor (I live in an apartment), I have the right to insist he not dismantle it and sell it for parts, or even take it out of town so that he can mow his grandmother's lawn. If a car company rents me a car, they have the right to insist I don't drive it to Mexico. If a movie producer licenses me the ability to view content he has created, he has the RIGHT not to offer it in such a way that would lend itself to movie trading on the internet.

Ownership rights are very important to the wealth-creation power of an economy. When owners have the right to control access to their creation, that ensures a revenue stream that attracts more providers into the market. Try to ignore for the moment that most content creators are huge, evil-looking media conglomerates. Imagine a digital world where you or I can make content from our home and sell it to 6 billion consumers around the world.

Do you want to be forced to make it available in ways that will deny you revenue? Furthermore, wouldn't forcing everyone to limit the manner in which they protect their media benefit large companies at the expense of small ones? People complain that patents are a poker game that only big companies can afford to play. In a world where "fair use" rules limited the usage of DRM, only big companies would have the money to enforce their rights, leaving small companies (or just Joe Guitar player in his garage) out in the cold.

People have tried to stretch notions of "fair use" in unnatural directions. In my opinion, fair use rights prevent companies from using the right to protect their content from reproduction as basis for stopping the rollout of new consumer technology. Content companies can't force the courts to ban the sale of VCRs, and book publishers can't sue Xerox for infringement of copyright.

That DOES NOT MEAN, however, that content companies must ride naked into battle against the pirates who sail the Internet seas. Content companies are within their rights, as OWNERS of content, to make the terms under which media can be consumed as strict or as loose as possible. Book vendors are within their rights to use special paper that prevents copying. Media companies, if they so desired, could have tried to prevent VCR copies by doing something to the signal that prevented VCR copying (though that probably wasn't technically feasible).

Your job as consumer is to tell studios your preferences by choosing whether or not to buy product that is offered under strict or loose terms. Don't like that Disney has released a movie that is so DRM-controlled that it only runs on Disney-provided hardware (absurd example)? Fine, don't buy it. You don't have any more right to tell them how to sell their product than they have to insist you offer them computer services at $2/hour.

Do note that I fully expect that content companies, as a result of failure to pass the broadcast flag directive, will license less and less content for unencrypted broadcast (note the adjective) over public airwaves. That, in my opinion, is at it should be. If they want certain protections, they need to build it themselves, given that they have failed to convince the general public of the merits of a broadcast flag.


John Carroll has delivered his opinion on ZDNet since the last millennium. Since May, he's been a Microsoft employee.

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